Reference Giving and Defamation

There is a lot of misinformation out there about giving references. The issue arises where the former employer receives a call from a prospective employer (or their agent) looking for a reference with respect to a prospective employee.

The most recent word on this topic comes from Kanak v Riggin, 2017 CanLII 30156 (ON SC) a case in which the plaintiff “took issue with her former manager … about what he said during a job reference.” She sued him for defamation and, after a 5 day trial, her action was dismissed in its entirety.

In this case, the plaintiff worked for Atomic Energy of Canada Limited (“AECL”) in the position of Senior Cost Control Analyst. The defendant had hired her. She reported to a supervisor who in turn reported to the defendant. She was, by all accounts, a good employee, receiving salary increases, positive performance reviews and a prestigious assignment. When AECL’s assets were sold in 2011, the plaintiff and some other employees were laid off. In response to a job ad, the plaintiff applied to work at Bruce Power. She was unemployed at the time. Bruce Power extended a conditional offer of employment to her. The condition that had to be satisfied was a positive reference check.

All references came back positive. As a result of one of the references being out of country, Bruce Power asked for the name of an alternate reference. The plaintiff gave Robert Keeler. He was contacted by someone in HR at Bruce Power and provided a positive reference. He indicated that the defendant had more experience supervising the plaintiff. As a result, the HR employee contacted the defendant.

Bruce Power withdrew their conditional offer of employment. The plaintiff was told that “its revocation of the conditional offer of employment was based on the negative employment reference it obtained from Mr. Riggin.”

Defamation Generally

The law of defamation was discussed recently in an employment context in Papp v. Stokes et al., 2017 ONSC 2357 (CanLII). The Court agreed that a plaintiff in a defamation action is required to prove three (3) things:

that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;

that the words in fact referred to the plaintiff; and

that the words were published, meaning that they were communicated to at least one person other than the plaintiff.

Once the plaintiff proves these things, the onus shifts to the defendant to establish a defence to the claim. For our purpose, and for purposes of employment references, we will look at the defence of qualified privilege.

Qualified privilege is available as a defence against a claim of defamation when the defendant has an “interest or a duty – legal, social or moral – to communicate the defamatory material to the person to whom it is made and the recipient of the communication has a corresponding interest or duty to receive the communication” (Ramirez v. Gale, 2017 YKSC 29 (CanLII)).

This defence is not absolute (hence the word qualified) in that it can be defeated if the plaintiff can show that the statement was made with malice. In Korach v. Moore 1991 CanLII 7367 (ON CA) the Court of Appeal discussed malice as follows:

Evidence of malice may be extrinsic or intrinsic. Extrinsic evidence is evidence of surrounding circumstances. Intrinsic evidence is the wording of the document itself. The wording may be so violent, outrageous or disproportionate to the facts that it furnishes strong evidence of malice.

Extrinsic evidence that the defendant made the defamatory statements knowing them to be untrue will ordinarily be conclusive evidence that the defendant lacked an honest belief in the truth of what he wrote. But the evidence need not go that far. If the defendant was reckless in making the statements, that will be sufficient. “Recklessness” in this branch of the law means indifference to the truth or falsity of what was said.

The court noted in Kanak:

… if the plaintiff proves that the dominant motive for publishing the defamatory expression is actual or express malice. Actual or express malice includes:

a) Spite or ill will;

b) Any indirect motive or ulterior purpose which conflicts with the occasion;

c) Speaking dishonestly, or in knowing or reckless disregard for the truth.

In the circumstances of Kanak, malice was not proven and the case was dismissed. The same result followed in Papp and in the earlier case of Miller v. Bank of Nova Scotia, 2002 CanLII 22030 (ON SC).

The Point

While one cannot stop a disgruntled former employee from bringing a lawsuit in circumstances where he or she is denied employment following a negative reference by the former employer, the defence of qualified privilege in the context of a reference check is one that has some legal history as noted above, though each case will have to be assessed on its own facts. Each company needs to determine how it will respond to reference requests, and what policy they will adopt, however, a blanket policy of “we don’t give references beyond the name, rank, serial number” variety because of a fear of being successfully sued for defamation is, in the vast majority of cases, a misplaced fear and may well hamper job search and lump the “good performer” in with the bad. There are, of course, exceptions, but as these cases show, they should be rare and can be managed.